Gentoo Foundation BylawsThe Gentoo Foundation shall not maintain offices other than the registered office described in Section 2.1 2. Article II Registered offices and registered agents The address of the initial registered office in the State of New Mexico and the name of the initial registered agent of the foundation at such address are set forth in the Certificate of Incorporation. The foundation may, from time to time, designate a different address as its registered office or a different person as its registered agent, or both; provided, however, that such designation shall become effective upon the filing of a statement of such change with the Secretary of State of the State of New Mexico as is required by law. 3. 3. Article III Meetings of members Section 3.1. Place of Meetings Meetings of the members shall be held electronically in the manner specified by the Secretary in the meeting calling notice. Normally in #gentoo-trustees on irc.freenode.net A meeting of the members shall be held annually at such time as the Board of Trustees may determine (which shall be, in the case of the first annual meeting, not more than thirteen (13) months after the organization of the foundation and, in the case of all other meetings, not more than thirteen (13) months after the date of the last annual meeting), at which annual meeting the members shall elect a Board of Trustees and transact other proper business. Special meetings of the members shall be held when directed by the Chairman, President or the Board of Trustees, or when requested in writing by not less than ten percent (10%) of all members. Notice stating the place, date and hour of the meeting and in the case of a special meeting, the purpose or purposes for which the meeting is called, shall be delivered not less than ten (10) nor more than sixty (60) days before the date of the meeting. Notices will be posted on appropriate mailing lists and in the /topic of the IRC channel to be used for the meeting. If any such member delivers to the foundation a written notice setting forth his or her then current address, the requirement that notice be given to such member shall be reinstated. Section 3.5. Notice of Adjourned Meetings When a meeting is adjourned to another time or place, the foundation shall not be required to give any notice of the adjourned meeting if the time and place to which the meeting is adjourned are announced at the meeting at which the adjournment is taken. At the adjourned meeting, any business may be transacted that might have been transacted at the original meeting. If, however, the adjournment is for more than thirty (30) days, or if after the adjournment the Board of Trustees fixes a new record date for the adjourned meeting, a notice of the adjourned meeting shall be given as provided in Section 3.4 above, to each member of record on the new record date entitled to vote at such meeting Section 3.7. Fixing Record Date. For the purpose of determining members entitled to vote at any meeting of members or any adjournment thereof, the Board of Trustees may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Trustees, and which record date shall not be more than 60 nor less than 10 days before the date of such meeting. The record date shall be the date of poll opening, unless stated otherwise. Section 3.8. Record of Members Having Voting Rights The officer or agent having charge of the membership records of the foundation shall prepare and make, at least ten (10) days before each meeting of members, a complete list of the members entitled to vote at such meeting, arranged in alphabetical order, and showing the name, electronic signature (gpg key), and electronic mail address of each member. This list is to be made publicly available on line. Upon the willful neglect or refusal of the Trustees to produce such a list at any meeting for the election of Trustees, such Trustees shall be ineligible for election to any office at such meeting. Except as otherwise required by law, by the Certificate of Incorporation or by these Bylaws, one-third (1/3) of the members entitled to vote, represented in person, shall constitute a quorum at a meeting of members. After a quorum has been established at a members' meeting, the subsequent withdrawal of members, so as to reduce the number of members in person entitled to vote at the meeting below the number required for a quorum, shall not affect the validity of any action taken at the meeting or any adjournment thereof. After a quorum has been established at a members' meeting, the subsequent admission of new members, so as to increase the number of members required for a quorum above the number of members present in person entitled to vote at the meeting, shall not affect the validity of any action taken at the meeting or any adjournment thereof. Each member shall be entitled to one vote on each matter submitted to a vote at a meeting of the members, except as may otherwise be provided in the law of the State of New Mexico. Members shall vote in person electronically At any regular or special meeting as provided in Section 3.3, any question may be voted upon in the manner and style deemed appropriate by the Secretary of the organization or chairman of the meeting. Section 3.11. Proxies - Deleted
Section 3.12. Action by Members Without a Meeting. Any action required to be taken or which may be taken at any annual or special meeting of members of the foundation, may be taken without a meeting, without prior notice and without a vote, if a written consent setting forth the action so taken shall be signed by members having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all members entitled to vote thereon were present and voted; provided, however, that no written consent shall be effective unless such consent
Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those members who have not consented in writing. There shall be one class of members, hereinafter referred to as full members. Reserved Section 4.3. Admission of Members Full members are admitted by petitioning the trustees for membership, providing verifiable evidence of their contribution to Gentoo. Active Gentoo developers who are not members of the Foundation may apply for membership. Any developer applying for membership in the Foundation will become a member of the Foundation immediately after the next Trustee meeting following the application unless an absolute majority of the trustees (currently 3 out of 5) oppose membership for the developer at this meeting. Applicants who are not Gentoo developers need to cite verifiable evidence of contributing to Gentoo or to the stated aims of the Gentoo Foundation Inc. Examples of contributing include but are not limited to, arch testing, bugzilla, Gentoo forums, working with existing developers. Contributions will be verified. The decision of the trustees is final. Monetary contributions will be discounted - Gentoo Foundation membership cannot be bought. Section 4.4. Continuation of Membership Full members who remain Gentoo developers shall have their membership continued until it is terminated in accordance with 4.8 or 4.9. Full members who retire from the Gentoo project shall have there membership continued while they indicate that they remain interested in the affairs of the Foundation unless their membership is terminated in accordance with 4.8 or 4.9. Criteria for loss of interest in the foundation shall be determined by the trustees, from time to time. Reserved Section 4.8. Voluntary Withdrawal from Membership Members may withdraw from membership in the foundation at any time upon thirty (30) days' written, signed notice delivered to an officer of the foundation, which notice may be by cryptographically signed electronic mail with a valid signature. Section 4.9. Termination from Membership. Membership may be terminated by a majority vote of the board of trustees in the event that any member acts contrary to the purpose(s) of the Gentoo Foundation. Section 4.10. Effect of Withdrawal or Termination of Membership. Upon any withdrawal or termination of the membership of any member, the membership, including all related voting rights, of such member shall be terminated. The business and affairs of the foundation shall be managed by or under the direction of the Board of Trustees, the "Trustees", which may exercise all such powers of the foundation and do all such lawful acts and things as are not by statute or by the Certificate of Incorporation or by these Bylaws specifically reserved to the members. Trustees need not be residents of New Mexico or of the United States, but they must be members of the foundation. No individual shall serve as a Gentoo Foundation Trustee and Gentoo Council Member concurrently The positions of all Trustees are Honorary - No compensation, monetary or in kind shall be paid. The foundation shall initially have five (5) Trustees. Thereafter, the number of Trustees shall be fixed by the members at each annual meeting of members. The initial Trustees who shall hold office until their successors shall take office, are as follows:
Section 5.5. Election and Term Trustees shall be elected by secret ballot of the members using the concordant voting system or other such suitable system. Elections shall be held nominally annual. Trustees shall normally hold office for a period not exceeding two electoral periods. Trustees shall retire annually by rotation (and may be re-elected). The first rotation shall be determined by the meeting of the Trustees held to adopt these Bylaws. Each Trustee shall hold office for the term for which he or she is elected and until his or her successor shall have been elected and qualified or until his or her earlier resignation, removal or death. Section 5.6. Resignation and Removal of Trustees A director may resign at any time upon written request to the foundation. Furthermore, any director or the entire Board of Trustees may be removed, with or without cause, by a vote of the majority of the members entitled to vote for the election of Trustees or as otherwise provided in the General Foundation Law of the State of New Mexico. Any vacancy occurring in the Board of Trustees, including any vacancy created by reason of an increase in the authorized number of Trustees, may be filled by the affirmative vote of a majority of the remaining Trustees though less than a quorum of the Board of Trustees or by a sole remaining director. A director elected to fill a vacancy shall hold office only until the next election of Trustees by the members. Section 5.8. Quorum and Voting A majority of the number of Trustees fixed in accordance with these Bylaws shall constitute a quorum for the transaction of business. The vote of a majority of the Trustees present at a meeting at which a quorum is present shall be the act of the Board of Trustees. Section 5.9. Executive and Other Committees The Board of Trustees, by resolution adopted by a majority of the full Board of Trustees, may designate an Executive Committee from among its members and such other committees consisting of at least one director as determined by the Board of Trustees from time to time. Each committee, to the extent provided in such authorizing resolution, shall have and may exercise all the power and authority of the Board of Trustees in the management of the business and affairs of the foundation, as limited by the laws of the State of New Mexico. The Board of Trustees, by resolution adopted in accordance with this section, may designate one or more Trustees as alternate members of any such committee, who may act in the place and stead of any absent or disqualified member or members at any meeting of such committee. In the absence or disqualification of any member of any such committee or committees, the member or members thereof present at any meeting and not disqualified from voting, whether or not they constitute a quorum, may unanimously appoint another member of the Board of Trustees to act at the meeting in the place of any such absent or disqualified member. Section 5.10. Place of Meetings. All meetings of the Board of Trustees may be held in person or electronically, within or outside the State of New Mexico and within or outside the United States. Section 5.11. Time, Notice and Call of Meetings Regular meetings of the Board of Trustees shall be held immediately following the annual meeting of members each year and at such times thereafter as the Board of Trustees may fix. No notice of regular Trustees' meetings shall be required. Special meetings of the Board of Trustees shall be held at such times as called by the Chairman of the Board, the President of the foundation, or any two (2) Trustees. Written notice of the time and place of special meetings of the Board of Trustees shall be given to each director by electronic mail at least two (2) days before the meeting. Notice of a meeting of the Board of Trustees need not be given to any director who signs a waiver of notice, either before or after the meeting. Attendance of a director at a meeting shall constitute a waiver of notice of such meeting and waiver of any and all objections to the place of the meeting, the time of the meeting, or the manner in which it has been called or conveyed, except when a director states, at the beginning of the meeting, any objection to the transaction of business because the meeting is not lawfully called or convened. Members of the Board of Trustees may participate in a meeting of such Board or of any committee designated by such Board by conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other at the same time. Participating by such means shall constitute presence in person at a meeting. Section 5.12. Action Without a Meeting. Any action required or permitted to be taken at a meeting of the Board of Trustees or of any committee thereof may be taken without a meeting if all the members of the board or committee, as the case may be, consent thereto in writing, and such writing is filed with the minutes of the proceedings of the board or committee. Such consent shall have the same effect as a unanimous vote. Section 5.13. Director Conflicts of Interest. No contract or other transaction between the foundation and one or more of its Trustees or between the foundation and any other foundation, partnership, association or other organization in which one or more of the Trustees of the foundation are Trustees or officers or are financially interested, shall be void or voidable solely because of such relationship or interest or solely because such director or Trustees are present at or participate in the meeting of the Board of Trustees or a committee thereof which authorizes, approves or ratifies such contract or transaction or solely because his or her or their votes are counted for such purpose, if:
Common or interested Trustees may be counted in determining the presence of a quorum at a meeting of the Board of Trustees or a committee thereof which authorizes, approves or ratifies such contract or transaction. The officers of the foundation shall consist of a President, a Secretary and a Treasurer, each of whom shall be elected by the Board of Trustees. A Chairman of the Board, one or more Vice Chairmen, one or more Vice Presidents, and such other officers and assistant officers and agents as may be deemed necessary may be elected or appointed by the Board of Trustees from time to time. Any two (2) or more offices may be held by the same person, except the offices of President and Secretary The officers of the foundation shall have the following duties:
Section 6.3 - Requirements for Chairman and Vice Chairman The Chairman and Vice Chairman, if elected by the board, must be trustees. Section 6.4. Election and Term Each officer shall be appointed by the Board of Trustees and shall hold office until such time as the officer resigns or is removed by the Board of Trustees Section 6.5. Removal of Officers. Deleted Any vacancy, however occurring, in any office may be filled by the Board of Trustees. The positions of all officers are Honorary - No compensation, monetary or in kind shall be paid. 7. Article VII Books and Records Section 7.1. Books and Records The foundation shall keep correct and complete books and records of accounts and shall keep minutes of the proceedings of its members, Board of Trustees and committees of Trustees. The foundation shall keep at its registered office or principal place of business, or at the office of its transfer agent or registrar, or in the custody of the Secretary a record of the name, electronic mail address and public gpg key of each member, together with the date of any withdrawal or termination of such member's membership. Each member shall be responsible for notifying the foundation of changes to such member's, electronic mail address and public gpg key. Any books, records and minutes may be in written form or in any other form capable of being converted into clearly legible written form within a reasonable time. Section 7.2. Members' Inspection Rights Members' Inspection Rights. Any person who is a member, upon written demand under oath stating the purpose thereof, shall have the right to examine, in person or by agent or attorney, at any time during the foundation's usual hours for business, for any proper purpose as determined under the law of the State of New Mexico, the foundation's membership records and its other books and records and to make copies or extracts therefrom. 8. Article VIII Nonprofit Status The foundation is organized and shall be operated as a not-for-profit membership foundation organized under New Mexico law. If the Board of Trustees of the foundation elects to seek and obtains an exemption for the foundation from federal taxation pursuant to Section 501(a) of the Internal Revenue Code, as amended (the "IRC"), and until such time, if ever, that such exemption is denied or lost, the foundation shall not be empowered to engage directly or indirectly in any activity which the foundation believes would be likely to invalidate its status as an organization exempt from federal taxation under Section 501(a) of the IRC as an organization described in Section 501(c) of the IRC. The Foundation shall not have a corporate seal These Bylaws may be altered, amended or repealed by the Board of Trustees or by the members, and new Bylaws may be adopted by the Board of Trustees or by the members. No alteration, amendment or repeal of these Bylaws shall be effective unless and until the foundation attempts, in good faith, to give notice to the members of the foundation of such alteration, amendment or repeal at least fifteen (15) days prior to the effective date of such alteration, amendment or repeal, which notice shall be to each members electronic mail address. 11. Article XI Limits on liability of Trustees Limits on liability of Trustees To the fullest extent permitted by the law of the State of New Mexico, as the same exists or may hereafter be amended, a director of the foundation shall not be personally liable to the foundation or its members for monetary damages for breach of fiduciary duty as a director. 12. Article XII Indemnification of officers and Trustees Section 12.1. Right to Indemnification Each person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative (other than an action by or in the right of the foundation), by reason of the fact that he or she is or was a director, officer or member of the foundation, or is or was serving at the request of the foundation as a director, officer, employee, or agent of another foundation, partnership, joint venture, trust, or other enterprise, shall be entitled to indemnification against expenses (including attorneys' fees), judgments, fines, and amounts paid in settlement to the fullest extent now or hereafter permitted by applicable law as long as such person acted in good faith and in a manner that such person reasonably believed to be in or not be opposed to the best interests of the foundation; provided, however, that the foundation shall indemnify any such person seeking indemnity in connection with an action, suit or proceeding (or part thereof) initiated by such person only if such action, suit or proceeding (or part thereof) was authorized by the Board of Trustees. Section 12.2. Advance Payment of Expenses. Expenses (including reasonable attorneys' fees) incurred by any person who is or was an officer, director or member of the foundation, or who is or was serving at the request of the foundation as an officer or director of another foundation, partnership, joint venture, trust or other enterprise, in defending any civil, criminal, administrative or investigative action, suit or proceeding, shall be paid by the foundation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such person to repay such amount if it is ultimately determined that he or she is not entitled under applicable law to be indemnified by the foundation. Section 12.3. Right of Claimant to Bring Suit If a claim under this Article is not paid in full by the foundation within ninety (90) days after a written claim has been received by the foundation, the claimant may at any time thereafter bring suit against the foundation to recover the unpaid amount of the claim and, if successful in whole or in part, the claimant shall be entitled to be paid also the expense of prosecuting such claim. It shall be a defense to any such action (other than an action brought to enforce a claim for expenses incurred in defending any action or proceeding in advance of its final disposition where the required undertaking has been tendered to the foundation unless such action is based on the claimant having committed an act involving moral turpitude) that the claimant has not met the standards of conduct which make indemnification permissible under the General Foundation Law of the State of New Mexico, but the burden of proving such defense shall be on the foundation. Neither the failure of the foundation (including its Board of Trustees, independent legal counsel, or its members) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the law of the State of New Mexico, nor an actual determination by the foundation (including its Board of Trustees, independent legal counsel, or its members) that the claimant has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the claimant has not met the applicable standard of conduct. Section 12.4. Contract Rights. The provisions of this Article shall be a contract between the foundation and each director, officer or member to which this Article applies. No repeal or modification of these Bylaws shall invalidate or detract from any right or obligation with respect to any state of facts existing prior to the time of such repeal or modification. Section 12.5. Rights Non-exclusive The indemnification and advancement of expenses provided by or granted pursuant to this Article shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any Bylaw, agreement, vote of members or disinterested Trustees or otherwise, both as to action in his or her official capacity and as to action in another capacity while holding such office. The foundation may purchase and maintain insurance on behalf of any person who is or was a director, officer, member, employee or agent of the foundation, or is or was serving at the request of the foundation as a director, officer, employee or agent of another foundation, partnership, joint venture, trust or other enterprise against any liability asserted against him or her and incurred by him or her in any such capacity, or arising out of his or her status as such, whether or not the foundation would have the power to indemnify him or her against such liability under the provisions of this Article or of applicable law. For purposes of this Article, references to "the foundation" shall include, in addition to the resulting foundation, any constituent foundation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its Trustees, officers, and employees or agents, so that any person who is or was a director, officer, employee or agent of such constituent foundation, or is or was serving at the request of such constituent foundation as a director, officer, employee or agent of another foundation, partnership, joint venture, trust or other enterprise, shall stand in the same position under this Article with respect to the resulting or surviving foundation as he or she would have with respect to such constituent foundation if its separate existence had continued, and references to "other enterprises" shall include employee benefit plans; references to "fines" shall include any excise taxes assessed on a person with respect to any employee benefit plan; and references to "serving at the request of the foundation" shall include any service as a director, officer, employee or agent of the foundation which imposes duties on, or involves services by, such director, officer, employee, or agent with respect to an employee benefit plan, its participants, or beneficiaries; and a person who acted in good faith and in a manner he or she reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner "not opposed to the best interests of the foundation" as referred to in this Article. Section 12.8. Continued Coverage The indemnification and advancement of expenses provided by, or granted pursuant to this Article shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director, officer or member and shall inure to the benefit of the heirs, executors and administrators of such person 13. Article XIII General provisions All checks or demands for money and notes of the foundation shall be signed by such officer or officers or such other person or persons as the Board of Trustees may from time to time designate. The fiscal year of the foundation shall be fixed by resolution of the Board of Trustees. No loans shall be contracted on behalf of the foundation and no evidence of indebtedness shall be issued in its name unless authorized by a resolution of the Board of Trustees. Such authority may be general or confined to specific instances. All funds of the foundation not otherwise employed shall be deposited from time to time to the credit of the foundation in such depositories as the Board of Trustees shall direct. The Board of Trustees may authorize any officer or officers, agent or agents, to enter into any contract or execute and deliver any instrument on behalf of the foundation, and such authority may be general or confined to specific instances. Section 13.6. Counterpart Execution: Facsimile Execution. Any document requiring the signature of the Trustees and/or members may be executed in any number of counterparts with the same effect as if all of the required signatories had signed the same document. Such executions may be transmitted to the foundation and/or the other Trustees and/or members by facsimile and such facsimile execution shall have the full force and effect of an original signature. All fully executed counterparts, whether original executions or facsimile executions or a combination, shall be construed together and shall constitute one and the same agreement. The contents of this document, unless otherwise expressly stated, are licensed under the CC-BY-SA-2.5 license. The Gentoo Name and Logo Usage Guidelines apply. |
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